P L D 1993 Quetta 57 (PLP)

Brief facts giving rise to present petition are that on 8th August, 1989 petitioner filed civil suit for declaration claiming right of passage from his aided agricultural property for approaching main road. Respondent Ibrahim and others filed written statement on 10th August, 1989 denying the claim in it. According to them no passage exists from any portion of their lands. however, heirs of Abdul Karim and Kamal Khan arrayed as defendants, did not object to the claim of petitioner. At the commencement of proceedings some evidence was adduced by the parties when learned Qazi vide judgment, dated 22nd April, 1990 decreed the suit. On appeal filed by, respondent aforesaid decision was set aside by Majlis-e-Shoora through judgment, dated 7-6-1991 and case remanded for allowing further opportunity of leading evidence. Record reveals that petitioner apart from himself examined 5 witnesses namely (i) Akhtar Muhammad, (ii) Ghulam Muhammad, (iii) Abdul Acein, (iv) Abdul Hameed and (v) Abdul Qadir. Whereas in rebuttal respondent adduced six witnesses i.e. (i) Khan Gul, (ii) Abdul Oudoos, (iii) Muhammad Tahir, (iv) Haji Ghulam Muhammad, (v) Haji Murtaza and (vi) Muhammad Wah. This time lea - rned Qazi Muslim Bagh on appraisement of evidence had dismissed the suit by means of judgment and decree, dated 1-6-1991. Feeling, aggrieved petitioner preferred an appeal before Majlis-e-Shoora, which was accepted vide judgment, dated 12-10-1991 awarding decree aimed in the suit. Respondent Malik Ibrahim Khan and 3 others challenged ,decision of Majlis-e-Shoora, Loralai through Revision Petition No.275 of 1991 which was partly allowed vide judgment, dated 22-3-1992 and case remanded to Majlis-e-Shoora, for fresh decision, in the light of observations made in said judgment. It may be seen that after remand learned Majlis-e-Shoora, dialating in all aspects dismissed the appeal by means of judgment, dated 12-9-1992 A upheld decision of trial Court, dated 18-6-1991. Present petition now challenges above-referred decisions of two forums below. Mr. M. Zafar learned counsel for petitioner emphatically urged that passage in dispute had been continuously used by petitioner for the last more than twenty years without any interruption. He argued that said passage was only source for petitioner to connect his landed property from main Zhob Road. According to learned counsel if petitioner is deprived of passage there U be no means for approaching his own property/lands. He further emphasised that both the Courts have acted in arbitrary manner by ignoring factual aspects and site-inspection-note. According to him impugned judgment also suffered from total misreading of evidence. Mr. Tariq Mahmood, learned counsel for respondents strenuously posed the petition. It was canvassed that petitioner himself asserted use of ;sage for the last 15/16 years which does not fulfil requirements for claiming lit of casement as contemplated in section 15 of Easements Act. It was argued that petitioner was bound to establish his absolute right about uninterrupted user of passage for claiming easement of convenience. To supplement his submission reliance was placed on the observations (i) 1991 Supreme Court Monthly Review page i10) and (ii) PLD 1991 SC

85. He stressed that Courts below had dismissed the suit for want of proper particulars about portion of the land from which right of passage had been claimed. Besides concurrent findings on factual aspect of easement right did not. warrant interference in exercise of revisional jurisdiction. The contentions were supplemented by relying upon observations in cases (i) 1989 MLD 1089 and (ii) 1991 MLD 1502. I have gone through available record and carefully considered arguments advanced by learned counsel for parties. The witnesses produced by petitioner have deposed that disputed passage crosses through land belonging to several persons including respondents. It was being utilized as such, since long. They expressed that except Kamal Khan who had blocked the passage, no one ever objected to the same. Petitioner Abdul Baqi in his deposition maintained that passage was being used for the last more than 20 years and no body ever interfered. According to his version no other access was available to reach main Zhob Road from his landed property. Witnesses examined by respondent in their statements have refuted the claim of petitioner. Their testimony discloses that alternate route was available to petitioner and according to them no motorable passage ever existed as claimed by petitioner. However, D.W. Haji Murtaza and Muhammad Wali have admitted existence of narrow walking strip, being used by people in the area which was neither motorable nor could be availed for Tractor or any vehicle. At this stage it would be appropriate to examine contents in para. 1 of the plaint where it has been incorporated that petitioners were using the passage in dispute from their garden to main Zhob Road for the last 15/16 years. Admittedly improvement has been made in the evidence to show user of alleged passage for more than 20 years. When Mr. M. Zafar when confronted with this anomaly he did not have any plausible answer to cover the glaring lacuna. Evidently easement is a right which a person acquires by prescription in a property belonging to another.. Therefore, it is imperative that any party asserting the same must establish his continuous, open, uninterrupted, peaceful enjoyment of those facilities which because of hostile usage have attained status of a valuable right and thereafter cannot be violated or denied by the owner of land. Therefore, mere temporary advantage, favour, facility, privilege licence or convenience cannot be equated with right by prescription. Needless to observe that necessity for utilizing right of passage in the special circumstances of each matter, must appear to be absolute, visible and entirely continuous. Section 15 of the Easements Act (Act V of 1882) expressly contemplates uninterrupted and absolute user of land as of right for a period more than 20 years. Relevant provision is reproduced below:-- "

15. Acquisition by prescription

Where the access and use and where

and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years. The right ... .. ... Explanation I ~ AA./434/Q' Petition dismissed. Explanation II . Explanation III. Explanation IV Petitioner had himself set up a claim in plaint regarding user of passage since 15/16 years. The matter remained under consideration before the subordinate forum for more than three years but during all this period, petitioner never sought amendment of plaint. There is no gainsaying the fact that evidence of plaintiff must correspond to claim set up in the plaint. Different stand or effort for improvement certainly tends to create reasonable doubt and effects quality of evidence and element of satisfaction essentially required in matters of easement. Honourable Supreme Court in case Abdul Hamid Shah v. Muhammad Yar PLD 1991 SC 815 has ruled that easement is a right possessed by an owner of property for the beneficial enjoyment appurtenant to a property owned by another person. Therefore, claimant must show that without enjoyment of such right, the property for the beneficial use whereof right exists, cannot be availed at all. Mere inconvenience on the failure to enjoy such benefit is not sufficient to grant relief. In another case (i) Pakistan Warranted Warehouse Ltd. v. M/s. Sindh Industrial Trading Estates Ltd. and another 1991 SCMR

119. Honourable Supreme Court while explaining 'Easement of necessity' has deemed it a right without which property cannot be effectively used. Mere reasonable or beneficial, enjoyment of property, did not furnish adequate test for creation of such right. It was observed that necessity had to be absolute and not only convenient mode of enjoying his property by availing the relief. In the instant case petitioner has clearly failed to justify the necessity of qualifying the tests laid in above-referred judgment. Right of easement under section 1.5 of the Easements Act, would accrue only when absolute peaceful and open enjoyment for continuously more than 20 years has been C convincingly established which aspect is clearly lacking in this case. Therefore, I have no hesitation in concluding that under given circumstances the claim of petitioner must fail. Additionally it may be seen that there is concurrent finding of fact wherein evidence has been exhaustively evaluated by both the forums below. Right of easement is obviously question of fact determinable on through analysis of evidence, led by parties. Therefore scope Of re-visional jurisdiction would be limited and interference is not justified unless patent illegality, want of jurisdiction, mis-exercise of authority or material irregularity can be disclosed. In this view I am fortified by the observations in cases (i) 1991 SCMR 119 and (ii) 1991 MLD 1502. For the above reasons, I do not find any substance in the petition which is consequently dismissed. Parties are left to bear their own costs. A.A./434/Q Petition dismissed.